On Wednesday, the Supreme Court handed down its most important decision on campaign finance reform since Citizens United. The decision, McCutcheon v. Federal Election Commission, seemed to divide along familiar ideological lines, with Chief Justice John Roberts writing the majority opinion for five conservatives and Justice Stephen Breyer, writing the dissent for the four liberals.
What really divided the court, however, wasn’t partisan politics pitting Republicans against Democrats but two conflicting views of the First Amendment. Which view you embrace depends on whether you see the McCutcheon decision as a principled triumph for unpopular speech or a First Amendment disaster that will ensure that a handful of the richest Americans can use their vast resources to drown out the voices of everyone else.
The First Amendment view embraced by Roberts and his conservative colleagues is rooted in individual liberty. There’s no right in our democracy more fundamental, Roberts began, than the First Amendment safeguards for “an individual’s right to participate in the public debate through political expression and political association.”
People exercise both these rights when contributing to candidates, Roberts said, whether they are a “lone pamphleteer” or someone who spends “substantial amounts of money.” He maintains that Congress may not “restrict the political participation of some in order to enhance the relative influence of others.”
The First Amendment that Breyer and the liberal dissenters embrace is far different. Breyer objected that Roberts’s focus on “the individual’s right to engage in political speech” fails to account for “the public’s interest in preserving a democratic order in which collective speech matters.”